NHS trust's Herceptin decision 'was arbitrary'

The decision to deny a breast cancer patient NHS treatment with the drug Herceptin was "arbitrary in the extreme", the appeal court heard today.

Ann Marie Rogers is appealing against last month's high court ruling that her local primary care trust (PCT) was not acting unlawfully in refusing to provide her with the drug.

Ms Rogers - who likened Swindon PCT's decision to "a death sentence" - has borrowed £5,000 to help fund her Herceptin treatment, but says she cannot afford to pay for further courses.

The 54-year-old mother of three, of Haydon Wick, Swindon, is to continue receiving the drug pending the outcome of the two-day appeal.

Studies suggest Herceptin can halve the chances of the aggressive HER-2 form of breast cancer returning.

The drug is currently only licensed for the treatment of advanced stage breast cancer, but its manufacturers, Roche, last month applied for a license for it to be used to treat the early stage of the disease.

Ms Rogers listened as her counsel, David Pannick QC, told the appeal court she had a 25% chance of remaining free of breast cancer after 10 years and a 57% prospect of the disease killing her within 10 years.

He told the Master of the Rolls, Sir Anthony Clarke, Lord Justice Brooke and Lord Justice Buxton that the PCT's decision was unreasonable and a breach of Ms Rogers' right to life under the Human Rights Act.

"We say that where you have, as you do here, undisputed clinical need, the absence of any alternative treatment offering as good - far less better - prospects for her, her clinician prescribing the drug and no suggestion by the PCT that cost is a factor to be weighed in the balance, it is arbitrary in the extreme then to say to the patient 'you can't have this drug'," he said.

"Our submission is that one searches in vain for a cogent reason - I emphasise cogent - why the PCT refuses to provide Herceptin in the circumstances of this case."